Spud Seller suit settled

Posted: Wednesday, Feb 6th, 2013BY: RUTH HEIDE

Courier editor

VALLEY — Although denying wrongdoing, The Spud Seller last week agreed to settle a sexual harassment lawsuit with monetary compensation to several former employees who alleged sexual misconduct at the Monte Vista-based potato wholesaler.

Also as part of the agreement between The Spud Seller and the Equal Employment Opportunity Commission (EEOC) that brought the suit in 2010, the potato company will post an anti-discrimination notice to all employees and hold Equal Employment Opportunity trainings for employees and supervisors.

The EEOC alleged The Spud Seller subjected female employees to sexual harassment and a hostile work environment and failed to take prompt remedial action to correct the situation.

In the consent decree signed by all parties last week and now waiting for a judge’s signature in U.S. District Court, The Spud Seller denied the allegations of the lawsuit, specifically denying that it harassed or retaliated against anyone or created/tolerated a hostile work environment.

“Spud Seller agrees to this consent decree solely to avoid the cost and uncertainties of trial and buy its peace,” the agreement stated. “No statement in this Consent Decree constitutes, nor should it be construed to constitute, an admission of wrongdoing by Spud Seller.”

All parties agreed the consent decree resolved the issues in the EEOC claim brought forward on behalf of Maria Portillo, also known as Maria de Jesus Ramirez. Portillo and several other women alleged sexual harassment from their Spud Seller supervisor Mauricio Gaytan who was floor foreman and assistant manager until 2010. The women sought monetary relief “for Spud Seller’s malicious and reckless conduct,” court records from the case stated last September.

Specifically, the women alleged Gaytan propositioned them for sex, exposed himself to them, rubbed against them in inappropriate manners, grabbed parts of their bodies, made lewd comments, made obscene gestures, showed them sexually explicit texts and cartoons, asked them out on dates with the threat of firing them if they did not agree, described his own sexual encounters to them and other sexual inappropriate actions.

At the time of the incidents, most of the women did not report them and those who did report them to management stated no action was taken to remedy the situation except possibly to tell the parties to stay away from each other. Gaytan denied the allegations, and the women ultimately left The Spud Seller, some of them stating at the time of their resignations they were uncomfortable around Gaytan.

The complaints dated as far back as 2004.

Portillo, who only spoke Spanish at the time of the complaint, was the one to file a charge of discrimination with EEOC after leaving The Spud Seller.

In a denial for summary judgment requested by the Spud Seller attorneys, the court found on September 30, 2012, “that the EEOC and Ms. Portillo have come forward with sufficient evidence, if credited by a jury, to establish both elements of a negligence claim.”

The court added that construing evidence most favorably to the EEOC and Portillo, it appeared complaints made to Gaytan’s supervisors were not acted upon, and a jury “could reasonably find that Spud Seller had both notice and/or actual knowledge of harassment by Mr. Gaytan.”

The court in September determined a trial was warranted but short of a trial declined to evaluate the sufficiency of evidence to establish individual damages.

“The question of whether any damage award is appropriate is dependent upon whether the underlying claim for sexual discrimination is established. That is the issue to be tried,” the court stated in its September order denying summary judgment.

“Finding genuine disputes of material fact with regard to the claims of the EEOC and Plaintiff-Intervenor, Ms. Portillo a trial is required … Determination of the awardability of individualized damages to other aggrieved persons and punitive damages shall await trial.”

To avoid trial, the parties entered an agreement on January 31.

Some of the provisions of that consent decree include:

• in effect for three years

• issues raised by EEOC and Portillo resolved

• within 90 days of the effective date of the decree, The Spud Seller must post in both English and Spanish final approval of settlement at the warehouse where all employees can see it

• Portillo and other aggrieved individuals must receive an apology letter in English and Spanish from The Spud Seller

• Equal Employment Opportunity training program must be instituted in English and Spanish for new and current employees and supervisors and will be monitored by court-appointed monitor J. Mark Baird, whom The Spud Seller will compensate for expenses